Enforcement Reform Frequently Asked Questions and Answers (FAQ)

Small wingnetters, like this one in Louisiana's Bayou La Fourche, take a surprising amount of the smaller-sized shrimp.High Resolution (Credit: NOAA)

U.S. Commerce Secretary Gary Locke today announced that he would allow fishermen and businesses until May 6, 2011, to submit complaints about potentially excessive enforcement penalties to the Special Master for review, as well as request stays of their penalties as part of the complaint process. This is part of a series of ongoing improvements to NOAA’s Law Enforcement System. TheSecretary and NOAA Administrator Jane Lubchenco also announced policy changes aimed at strengthening, simplifying and improving both the enforcement and the regulatory process for fishermen and businesses.

Enforcement reforms taken by Secretary Locke and NOAA include:

Opening an appeal window to allow fisherman and businesses that wish to come forward to submit a complaint to the Special Master. [more]

Allowing fishermen and businesses to request a stay of penalty payment as part of the complaint process. [more]

Issuing a new nationwide penalty policy that provides consistency and greater transparency on the assessment of penalties and permit sanctions throughout the country. [more]

Finalizing the Asset Forfeiture Fund (AFF) Use Policy that greatly restricts the uses of the Fund in order to ensure there is no conflict of interest – real or perceived – with the use of the Fund. [more]

Launching an independent audit of the AFF that will include a targeted review of transactions going back to 2004 to determine if there was fraud or other illegal activity.

Working with fishery councils, fishermen and stakeholders to streamline and simplify fishing regulations. [more]

Nets and otterboards hanging outboard on the MISS EULA, a Vietnamese-American owned shrimp trawler operating in the Gulf of Mexico.High Resolution (Credit: NOAA)

In order to ensure that any claims of possible excessive penalties are heard by an impartial party, Secretary Locke is allowing fishermen and businesses to submit their complaints to the Special Master, who will determine if cases are eligible for his review. All complaints must be postmarked by May 6, 2011. To be eligible, the Notice of Violation and Assessment (NOVA) must have been issued on or after March 17, 1994; settled or otherwise resolved before February 3, 2010; and a civil penalty must have been paid. In addition, the person making the complaint must certify the alleged facts are true.

Cases are not eligible for review if they were decided by a federal district court judge, or are currently pending before for an Administrative Law Judge or the NOAA Administrator. The Special Master will review cases that meet the criteria and make recommendations to Secretary Locke regarding whether the civil penalties imposed and paid in those cases should be remitted or modified.

Q. Who can appeal to the Special Master?

Fishermen can submit their case to the Special Master and he will determine if your case is eligible for his review. To be eligible for submission, you must have:

Been issued a Notice of Violation and Assessment (NOVA) on or after March 17, 1994 and settled or otherwise resolved your case before February 3, 2010.

Paid a civil penalty.

Fishermen are NOT eligible for review, if their case:

Was decided by a federal district court judge.

Is currently pending for an Administrative Law Judge (ALJ).

Is pending before the NOAA Administrator.

Q. How do you plan to notify fishermen?

Today we made our announcement public with a press release and a dedicated website fishermen can go to for more information. We will take out advertisements in trade/industry publications and ask the Congressional delegations and Governors to get the word out.

Q. How will a fisherman know his/her application was received, and how long until a decision is made?

All fishermen will be contacted once their applications have been reviewed.

Q. Will you hire additional staff to work with the Special Master to ensure a timely process?

Judge Swartwood is working as expeditiously as possible to conduct a thorough review. It is difficult to estimate how long the review process will take – it will depend on how many applications are received during the review window.

Q. Why are you only addressing civil penalties and refusing to address permit sanctions?

Under Magnuson Stevens Act (MSA), the Secretary has the authority to remit or modify civil penalties. MSA does not give him authority to review or modify permit sanctions.Q. Will fishermen be able appeal fines to the Special Master going forward or only during this review window?

Fishermen will only be able to appeal civil penalties that were issued and resolved (adjudicated or settled) between March 17, 1994, and February 3, 2010, during this review window.

The basket load of fish is being brought out of the water and will be placed directly over the hole in the foreground. The fish will be deposited in the hole which has a chute that leads directly to the freezer compartments. .High Resolution (Credit: NOAA)

As part of the complaint process, fishermen can request to have the Special Master recommend whether payment of the penalty should be stayed while their case is under review. In addition, Secretary Locke has stayed the currently penalty obligations of those complainants whose cases have been under review and had requested a stay.

Q. Does this mean fishermen won’t have to pay their penalties?

No. The Special Master will review cases that meet certain criteria and make recommendations to Secretary Locke regarding whether the civil penalties imposed and paid in those cases should be remitted or modified.

The final Penalty Policy ensures that there is a more consistent standard for assessing penalties for violations, and greater transparency and clarity for the regulated community. The policy addressed the problems identified by the Commerce Inspector General by establishing one penalty and permit sanction matrix for each major statute that NOAA enforces, to be applied nationally, with narrower penalty and permit sanction ranges.

This simplified approach provides NOAA attorneys with greater guidance in recommending penalties, and assures fairness and consistency of approach across NOAA statutes, across fisheries, and across the country. Further, the basis for penalties calculated under the policy will be included in charging documents filed by NOAA. This final policy will be applied to cases charged effective today.
Q. What does the Penalty Policy do?

The Penalty Policy ensures that penalties and permit sanctions are assessed in a fair and consistent manner nationwide and are appropriate to a given violation. It further provides greater transparency for the regulated community and other stakeholders regarding this process.
Q. How will NOAA use the Policy to assess a penalty or permit sanction in a particular case?

Penalties and permit sanctions will be based on two components:

A base penalty reflecting the seriousness and particular circumstances of the violation; plus

The proceeds of any unlawful activity (e.g., the proceeds from the sale of illegally caught fish) and any additional economic benefit.

Q. Why do you include in the penalty an amount equal to the proceeds from the sale of the fish or other economic benefit?

We include these amounts to ensure that there is a level playing field for those who comply with the law, and to ensure that a penalty assessment is not seen as merely a cost of doing business.

The new Penalty Policy uses a simplified approach: there is one penalty and permit sanction matrix for each major statute that NOAA enforces, to be applied nationally. There are narrower penalty and permit sanction ranges compared to earlier policies. This approach assures that NOAA attorneys are provided with greater guidance in recommending penalties, and assures fairness and consistency of approach across NOAA statutes, across fisheries, and across the country. All charging decisions and settlements will continue to require higher review – the prior approval of the NOAA General Counsel or Deputy General Counsel.

Q. How does this final Penalty Policy differ from the October 2010 draft Penalty Policy?

The overall approach in the final Penalty Policy remains largely the same as in the October 2010 draft. NOAA is making changes in response to comments as described below:

Under the final Policy, the first step in assessing a penalty is to determine the gravity of the violation, based on the nature, extent and circumstances of the violation. This replaces the “potential for harm” to the resource or regulatory program approach used in the draft policy that commenters found unclear.

The final Policy provides that only prior violations that were subject to a final administrative adjudication (e.g., a final decision by an Administrative Law Judge or the NOAA Administrator) will be considered in assessing a penalty. Violations that have been charged but not adjudicated will not be considered prior violations.

The final Policy simplifies the approach to assessing economic benefit of the violation by relying primarily on assessing the proceeds of the unlawful activity as the means of ensuring that the penalty levels the playing field for those who do comply with the law.

The final Policy refines the penalty matrixes and gravity-of-offense schedules to enhance the consistency of penalty assessments and provide greater transparency for the regulated community.

The final Policy includes self-reporting of noncompliance as a basis for reducing a penalty assessment.

Q. How does the Penalty Policy resolve problems identified by the Office of Inspector General in its 2010 reports regarding the appearance of regional disparities in penalty assessments and disparities in penalties for similar violations, and the perception that NOAA attorneys had too much discretion in determining penalty assessments?

The Policy uses a simplified approach: There is one penalty and permit sanction matrix for each major statute that NOAA enforces, to be applied nationally, with narrower penalty and permit sanction ranges. This approach assures that NOAA attorneys are provided with greater guidance in recommending penalties, and will assure fairness and consistency of approach across NOAA statutes, across fisheries, and across the country.

Q. Fishery regulations are confusing and difficult to comply with. How does this Penalty Policy fix that?

While the statutes NOAA enforces impose strict liability to protect the nation’s natural resources – even where the violation is unintended – the Penalty Policy provides that where the violation was due to accident or mistake, there will be a lower penalty assessment.

The Penalty Policy provides that where the violation was due to accident or mistake, there will be a lower penalty assessment. Charging decisions and settlements will continue to require the prior approval of the NOAA General Counsel or Deputy General Counsel.

Q. Why is the Penalty Policy taking a “one-size-fits-all” approach and ignoring regional differences in fisheries?

The Inspector General was firm in his assessment that a national framework was needed, and identified the appearance of regional disparities in penalty assessments as a problem. The Penalty Policy addresses these issues.

The Penalty Policy accounts for regional and other differences in fisheries within this national framework. The Policy includes consideration of the specific circumstances of the individual violation, including whether the violation was intentional or inadvertent, whether the violator was engaged in commercial or recreational activity (which will reflect regional differences), and the value of the proceeds from the illegal activity (e.g., proceeds from the sale of the illegally-caught fish), which will vary by region and fishery.

Q. Will this Penalty Policy result in higher fines across the board?

The approach and goal of the new penalty policy is fairness and even-handedness across our country and we will use our more narrowly focused discretion to ensure a fair and smooth transition.

In some instances, the penalties for certain violations will be higher, and in other instances lower, than assessed in the past. This is appropriate in order to address the problems identified by the Office of Inspector General regarding the appearance of regional disparities in penalty assessments and disparities in penalties for similar violations.

Where a penalty to be assessed under the new Penalty Policy is substantially above or below the old penalty ranges, the General Counsel or Deputy General Counsel will take particular note of that fact in establishing a penalty, and the public will be able make a comparison from the publicly available information.

Q. When does this Penalty Policy go into effect?

The final Penalty Policy will apply to cases being charged effective immediately. However, in transitioning to this new Policy the NOAA General Counsel’s Office will monitor penalty assessments closely; any penalty or permit sanction under this Policy that is substantially higher or lower than under the prior penalty schedules will be reviewed before the penalty is put into a charging decision.Q. Will there still be higher-level review of charging decisions?

Charging decisions and settlements will continue to require the prior approval of the NOAA General Counsel or Deputy General Counsel.

The final policy limits the ways NOAA’s enforcement programs – both the Office of Law Enforcement and the Office of General Counsel for Enforcement and Litigation – can use money from the AFF that holds penalties collected for violations of federal marine resource laws.

The final policy prohibits half of the AFF’s historical uses, including the purchase of vehicles and vessels; paying for travel that is not related to investigations, proceedings or training; or paying for training unrelated to an integral part of an employee’s job. By restricting its use, the policy ensures there is no appearance that penalties might be increased to raise the amount in the AFF. The policy continues expanded use of AFF for NOAA’s compliance assistance, collaboration and outreach activities. The policy is being made final today, following a 60-day public comment period.

The policy is part of a suite of changes NOAA has made over the past year in how it manages the AFF, including higher-level oversight and prior approval for any expenditure of $1,000 or more.

Q. What does the new Asset Forfeiture Fund policy do? Does it prohibit unnecessary expenditures (e.g., foreign travel, vehicles or yachts)?

NOAA is reaffirming in final its draft Asset Forfeiture Fund Policy (AFF) implemented in September 2010. The Policy is a means of ensuring that the use of the AFF is transparent to the public and that there is no conflict of interest – real or perceived – with the amount of fines and penalties collected by NOAA and uses of the AFF.

The Policy prohibits using the AFF to fund:

NOAA employee labor, benefits, or awards;

vehicle or vessel purchases or leases, or associated equipment, upgrades, modification or maintenance;

purchase of any equipment that is not directly related to a specific investigation or enforcement proceeding;

travel not related to investigations, proceedings or training; or

training unrelated to an integral part of an employee’s job.

The policy includes new uses aimed at improving and expanding NOAA’s compliance assistance, collaboration and outreach activities, such as:

regional enforcement workshops and training sessions;

engaging fishermen to solve regional and national enforcement issues; and

improving websites, compliance guides, and electronic notices.

Q. What is NOAA doing to ensure proper use of the fund and better tracking?

While the AFF policy addresses appropriate uses, NOAA has put in place additional new oversight policies and procedures to ensure proper use and tracking:

approval by the NOAA Fisheries Chief Financial Officer for any expenditure of $1,000 or more;

new accounting measures to better define collections and expenditures;

reducing the number of credit cards by one-third and ensuring all purchases are consistent with all guidelines;

including the AFF in NOAA’s annual budget submission; and

planning a comprehensive forensic audit beginning this month that will include a retrospective review of purchases to further ensure there was no theft or fraud.

Q. How does this final Policy differ from the draft Policy that was implemented in September 2010?

The Policy continues to prohibit many of the Asset Forfeiture Fund’s historical uses. Some comments received on draft Policy during the 60-day comment period sought to expand use of the AFF; some comments sought to further limit use. While the statutorily authorized uses of the AFF are very broad, the final policy remains largely unchanged as it strikes a balance between promoting a sound enforcement program and ensuring no conflict of interest – real or perceived – in use of the AFF.
Q. Were funds in the AFF misused?

Neither the OIG nor NOAA found any specific misuse of the AFF. As the recent legal opinion indicates, the statutorily allowed uses of the AFF are very broad. However, the new policy limits these authorized uses even more as a means of ensuring there is not even the appearance of a conflict.

Q. Why is foreign travel still allowed?

Working with our international partners is an essential part of NOAA’s mission. OLE fights against illegal, unreported and unregulated (IUU) fishing around the world helping ensure that U.S. fishermen do not have to share the market with illegally harvested or illegally imported product from foreign vessels. OLE and GCEL participate in a number of international negotiations each year helping ensure the adoption of enforceable measures that protect U.S. fishermen’s equitable rights to shared stocks.

Q. Why are you still going to pay Administrative Law Judges (ALJ)?

A hearing before an ALJ is an important component of a fair and effective enforcement program and provides a fisherman an opportunity to challenge the agency’s position that a violation has occurred, and if so, what penalty is appropriate. Using the AFF for this purpose, as clearly authorized Magnuson-Stevens Act, reduces the burden on taxpayers.

Q: Why won’t NOAA freeze use of the Asset Forfeiture Fund until all of the problems with enforcement are resolved?

A fair and effective enforcement program is critical to protecting law-abiding fishermen and our fishery resources. Freezing the AFF would cripple NOAA’s important enforcement work. We are confident that the final Policy and other measures we have in place are ensuring proper use of the AFF and accurately tracking funds and expenses.

The Commerce Secretary’s Office has asked NOAA to ensure that, as part of the Administration-wide review of regulations to reduce regulatory burdens and increase the openness and accessibility of government, the agency focuses on fisheries regulations and works with regional councils, fishermen and other stakeholders to make these rules and regulations simpler and easier to follow.

Q. Are you taking comments on specific regulations that I think need revision?

NOAA is working with fishery councils, fishermen and stakeholders to streamline and simplify fishing regulations. We have asked for feedback on rules or guidance that may be duplicative or have conflicting requirements among its components or with other agencies. We are asking people specifically to identify the rules or guidance and suggest ways NOAA can streamline, consolidate or make these regulations work better.

Q. Can I comment on regulations that may not be considered significant?

Yes. The public can comment on any aspect of the review process.

Q. What does E.O. 13563 say?

The President calls on the Federal government to: “promote predictability and reduce uncertainty. It must identify and use the best, most innovative, and least burdensome tools for achieving regulatory ends. It must take into account benefits and costs, both quantitative and qualitative. It must ensure that regulations are accessible, consistent, written in plain language, and easy to understand. It must measure, and seek to improve, the actual results of regulatory requirements.”

Q. Why is there such a short turnaround time for comments?

NOAA recognizes that the public comment period set forth is shorter than the 30-60 day (or longer) comment periods that may be used for proposed rules. That is because of consideration of the timing requirements under the Executive Order and because NOAA is not asking for detailed comments on the substance of specific regulation — only comments pertaining to the retrospective review plan, which is under development.

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